Makes provisions regarding environmental benefit projects in lieu of civil penalties including establishing conditions for their acceptance and criteria for such projects; authorizes the attorney general to review and approve the settlement or administrative order.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A4000
SPONSOR: Glick
 
TITLE OF BILL:
An act to amend the environmental conservation law, in relation to envi-
ronmental benefit projects in lieu of civil penalties
 
PURPOSE OR GENERAL IDEA OF BILL:
The bill codifies requirements in the Environmental Conservation Law in
relation to requirements for partial settlements in the form of environ-
mental benefit projects.
 
SUMMARY OF SPECIFIC PROVISIONS:
The bill amends the following provisions of the Environmental Conserva-
tion Law to:
*§ 71-0520(1) define terms used in the bill;
*§ 71-0520(2) establish conditions which must be met in order for the
Department to authorize environmental benefit projects;
*§ 71-0520(3) establish criteria which must be met by environmental
projects;
*§ 71-0520(4) specify types of activities which do not qualify as envi-
ronmental benefit projects;,
*§ 71-0520(5) require a payable economic benefit portion of the civil
penalty which must be paid in full and a gravity portion of the civil
penalty which reflects the seriousness of the violation which may be
compensated in part by an environmental benefit project. If a respondent
intends to deduct the cost of the environmental benefit project from its
taxes, an adjustment to the gravity component which reflect the tax
benefit must be calculated and included in the penalty;
*§ 71-0520(6) specify project completion scheduling requirements;
*§ 71-0520(7) require notice in the environmental notice bulletin and a
newspaper in general circulation in the area where the violations
occurred at least 45 days before the settlement or order is executed;
and,
*require the Attorney General to review and approve the settlement or
order; and allows the violator to publicize the environmental benefit
project, acknowledging that it was performed in response to an enforce-
ment action brought by the Department.
 
JUSTIFICATION:
There have been instances in the recent past where the Department has
approved projects authorized in lieu of monetary penalties which were
not appropriate and did not benefit the community where the environ-
mental damage occurred. The Department has an internal guidance document
which establishes requirements for "environmental benefit projects;"
however, that document is discretionary. This bill will ensure greater
accountability, increase public notice, and occur within the communities
in which the violation occurred.
Greater Accountability:
Pollution prevention projects are limited to those which reduce or
prevent the generation of pollutants, and do not include actions which
improve compliance. This provision will ensure that the pollution
prevention project is truly directed at source reduction. Environmental
education projects are directed toward assisting the public in under-
standing the nature of the industry which caused the violations, how the
community was impacted and ways for the community to become more vigi-
lant. This should avoid meaningless public education programs which do
little to provide the public with useful information or understanding of
the enforcement process. The settlement must include a fully recoverable
economic benefit monetary penalty and a payable portion of the gravity
component of the penalty. This provision should assure that a company
cannot avoid monetary penalties by creating an environmental benefit
project which it claims is equal to the amount of the penalties.
Consideration of the Community:
The project should be located in the county where the violation
occurred, within twenty-five linear miles of the site of the violation.
This should ensure that the communities which suffered the environmental
insult will recover some value from the project.
Public Notice:
A notice of the proposed settlement must be published in the Environ-
mental Notice Bulletin and in a newspaper in general circulation where
the violation occurred at least 45 days before the settlement/order is
executed, thereby giving the public an opportunity to review the settle-
ment prior to its adoption. If the violator publicizes the project or
project results, the respondent must acknowledge that the project was
performed as part of the resolution of an enforcement action brought by
the Department.
 
PRIOR LEGISLATIVE HISTORY:
2021-22: A.4087 - Referred to Environmental Conservation
2019-20: A.2421 - Referred to Environmental Conservation
2017-18: A.1495 - Referred to Environmental Conservation
2015-16: A.5134 Reported to Codes
2013-14: Reported to Codes
2011-12 A.4134 Reported; 3rd Reading Calendar
 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None.
 
EFFECTIVE DATE:
This act shall take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
4000
2023-2024 Regular Sessions
IN ASSEMBLY
February 8, 2023
___________
Introduced by M. of A. GLICK -- read once and referred to the Committee
on Environmental Conservation
AN ACT to amend the environmental conservation law, in relation to envi-
ronmental benefit projects in lieu of civil penalties
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The environmental conservation law is amended by adding a
2 new section 71-0520 to read as follows:
3 § 71-0520. Environmental benefit projects in lieu of civil penalties.
4 1. For purposes of this section, the following terms shall have the
5 following meanings:
6 a. "Economic benefit of noncompliance" shall mean that portion of the
7 civil penalty which includes the economic gain to the respondent result-
8 ing from its failure to comply with the applicable standards, calculated
9 from the first day of violation and includes the present value of
10 avoided capital and operation costs and permanently avoided costs which
11 would have been expended if compliance had occurred when required.
12 b. "Environmental benefit project" or "project" shall mean a project
13 in lieu of full payment of civil penalties undertaken by a violator that
14 is intended to compensate for a violation or contravention of applicable
15 standards.
16 c. "Gravity component" shall mean that portion of the civil penalty
17 which reflects the seriousness of a violation, calculated on the basis
18 of the potential and actual harm caused by the violation, and the value
19 of the natural resource damages, if the violator is not repairing the
20 harm.
21 2. The commissioner shall not enter into any agreement or administra-
22 tive order which provides for a partial settlement of conditions in the
23 form of any environmental benefit project in lieu of the payment of
24 civil penalties unless all of the following conditions are met:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02875-01-3
A. 4000 2
1 a. The respondent does not have a record of significant or repeated
2 noncompliance or recalcitrance;
3 b. The violation was not committed intentionally, knowingly or reck-
4 lessly, or with any of the culpable mental states defined in section
5 15.05 of the penal law;
6 c. The violation did not result in a threat to public health or cause
7 grave or serious environmental harm;
8 d. The respondent shall, in good faith, undertake all necessary steps
9 to promptly correct the violation;
10 e. Projects shall be initiated in addition to all regulatory compli-
11 ance obligations and shall be designed to provide an environmental bene-
12 fit beyond the benefits of full compliance;
13 f. Projects cannot be activities otherwise required by law or already
14 obtainable under the department's authority;
15 g. All violations shall be corrected to ensure compliance with appli-
16 cable environmental law and regulations, and respondents shall not be
17 given additional time to correct violations in order to complete a
18 project;
19 h. Projects shall not be measures which the respondent would have
20 undertaken anyway within the next five years;
21 i. Projects shall be designed to provide a discernible benefit to the
22 environment rather than to the respondent;
23 j. To ensure that the deterrent effect of a settlement is achieved,
24 settlements involving a project shall include a payable penalty compo-
25 nent;
26 k. The project is within the capability of the department to review
27 and monitor, and shall yield benefits significant enough to justify
28 department oversight; and
29 l. A project can neither be used to cover administrative costs of the
30 department nor as a revenue generating mechanism for the department.
31 3. Environmental benefit projects shall meet the following criteria:
32 a. The project shall, to the extent practicable, be located within the
33 county where the violation occurred, within twenty-five linear miles of
34 site of the violation;
35 b. An environmental restoration project shall go beyond repairing the
36 damage caused by the violation to enhance the condition of the ecosystem
37 or geographic area adversely affected;
38 c. A pollution prevention project shall substantially reduce or
39 prevent the generation or release of pollutants through source
40 reduction;
41 d. A risk reduction project shall develop and implement risk manage-
42 ment or accident prevention/emergency planning programs which provide
43 protection in excess of industry standards and existing or future regu-
44 latory requirements; and
45 e. An environmental education project shall, to the extent practica-
46 ble, be directed toward understanding the nature of the industry which
47 has caused the violation, how the violation impacted the community and
48 ways in which the community can become more vigilant in monitoring envi-
49 ronmental insults and violations.
50 4. An environmental benefit project shall not include the following:
51 a. A contribution to environmental research at a college or universi-
52 ty;
53 b. A project, though beneficial to the impacted local government,
54 unrelated to environmental protection;
55 c. Studies or assessments without a commitment to implement the
56 results;
A. 4000 3
1 d. Performance of projects by a third party unless such party is
2 required to implement the project specified in the settlement document;
3 or
4 e. Public education projects.
5 5. Settlements which contain a project shall contain:
6 a. a payable penalty component which fully recovers the economic bene-
7 fit of noncompliance to the respondent;
8 b. a payable portion of the gravity component of the penalty; and
9 c. a written statement signed by the respondent which confirms that
10 the respondent will not deduct the cost of the project from its taxes.
11 If the settlement does not include such a statement, the gravity compo-
12 nent of the penalty must be adjusted to reflect the tax benefit.
13 6. All projects factored into penalty calculations shall be performed
14 pursuant to legally enforceable compliance schedules which:
15 a. accurately and completely describe the project, detail the actions
16 to be performed, and provide reliable and objective means to verify that
17 the compliance scheduled has been adhered to;
18 b. have enforceable milestone implementation schedules; and
19 c. oblige the respondent to submit periodic reports to the department
20 describing compliance with the terms of the project.
21 7. All projects shall be subject to the following notice and approval
22 conditions:
23 a. notice of the proposed settlement or order, including a description
24 of the project and the payable penalties, shall be published in the
25 environmental notice bulletin and at least one newspaper in general
26 circulation in the area where the violations occurred, at least forty-
27 five days before the settlement or order is executed;
28 b. the attorney general shall review and approve the settlement or
29 administrative order; and
30 c. whenever the respondents publicize the project or project results,
31 the respondent shall acknowledge that the project was performed as part
32 of the resolution of an enforcement action brought by the department.
33 § 2. This act shall take effect immediately.